Right to Respect for Private and Family Life, Freedom of Thought, Conscience and Religion, Freedom of Expression and Freedom of Assembly and Association

Pustorino, Pietro

doi:10.1007/978-94-6265-563-8_9

Pietro Pustorino²

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Abstract

The chapter addresses the international rules on the rights to respect for private and family life, to freedom of thought, conscience, and religion, to freedom of expression and to freedom of assembly and association. These have been the subject of expansive interpretation in international case law, especially that of the ECtHR, in order to encompass the protection of new rights or categories of individuals, such as the protection of personal data, the right to be forgotten, the protection of same-sex couples or the right of access to the Internet. Finally, the chapter examines, by referring to the relevant case-law, possible conflicts either between human rights or between human rights and state interests. Relevant examples are the conflict between freedom of religion and the need to guarantee the security of the State, which has been discussed in the case law on the Islamic veil, or the issues concerning the display of the crucifix in public schools.

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Notes

1.
In this regard, Article 23 ICCPR.
2.
See Articles 7 and 8 CFREU.
3.
See Chap. 6, Sects. 6.3–6.3.3.
4.
See Chap. 3, Sect. 3.7.1.
5.
See Chap. 3, Sect. 3.9.
6.
In this regard, see ECtHR (Grand Chamber) judgment of 17 October 2019, in López Ribalda and Others v. Spain, appl. nos. 1874/13 and 8567/13.
7.
See judgment of 2 September 2010 in Uzun v. Germany, appl. no 35623/05, para 52.
8.
See the inadmissibility decision of 29 June 2006 in Weber and Saravia v. Germany, appl. no. 54934/00, para 95.
9.
Appl. nos. 58170/13, 62322/14 and 24969/15, para 350 of the judgment.
10.
Id., para 362.
11.
On the family relationship between grandparents and grandchildren, see recently the ECtHR judgment of 14 January 2021, Terna v. Italy, appl. no. 21052/18, paras 63–64.
12.
On the balance between the needs of protection of the public interest in the prevention of crime and the protection of private and family life of the individual, see recently the judgment of the UK Supreme Court of 16 July 2021, UKSC 30, Sanambar v. Secretary of State for the Home Department, paras 47 ff., which considers it lawful to deport a foreigner both because he is responsible for numerous crimes in the United Kingdom and because of the possibility of his reintegration in the country of origin, Iran.
13.
See ECtHR judgment of 2 August 2001 in Boultif v. Switzerland, appl. no. 54273/00, para 48.
14.
Appl. no. 46410/99, para 58 of the judgment.
15.
On this principle, see Chap. 7. Sect. 7.4.
16.
In this regard, see ECtHR (Grand Chamber), judgment of 9 July 2021, M.A. v. Denmark, appl. no. 6697/18.
17.
On this issue, see Chap. 9, Sects. 9.3–9.3.2.
18.
ECtHR (Grand Chamber), judgment of 27 August 2015, Parrillo v. Italy, appl. no. 46470/11, para 158.
19.
See appl. no. 33783/09.
20.
See Article 18 ACHR.
21.
Appl. no. 77/07, para 67 of the judgment.
22.
On this right, see the ECtHR (Grand Chamber) judgment of 27 June 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, appl. no. 931/13, para 137.
23.
For an application of these criteria, see ECtHR judgment of 28 June 2018, M.L. and W.W. v. Germany, appl. nos. 60798/10 and 65599/10.
24.
The Directive has been repealed by Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
25.
Case C-131/12, para 93.
26.
Appl. no. 57292/16. The applicant requested that the case be referred to the Grand Chamber. On 11 October 2021 the Grand Chamber panel of five judges decided to refer the case to the Grand Chamber pursuant to Article 43 ECHR.
27.
Appl. no. 45245/15.
28.
See the decision of 21 February 2022, CEDAW/C/81/D/134/2018, para 9.7. In this case, concerning the criminalization of same-sex conduct between consenting adults in the Sri Lankan legal system, the CommEDAW clarified that “decriminalization of consensual same-sex relations is essential to prevent and protect against violence, discrimination and harmful gender stereotypes”: para 9.4.
29.
Appl. no. 30141/04, para 94 of the judgment.
30.
Appl. nos. 29381/09 and 32684/09, para 73 of the judgment.
31.
US Supreme Court judgment of 26 June 2015 in Obergefell and Others v. Hodges, Director, Ohio Department of Health and Others.
32.
Appl. nos. 18766/11 and 36030/11, para 65 of the ECtHR judgment.
33.
See para 200 of the judgment.
34.
On this issue, see Chap. 4, Sect. 4.3.1. On the basis of the ruling of the ECtHR, the Italian Parliament approved Law No. 76 of 20 May 2016 on the regulation of civil unions, including those between persons of the same sex.
35.
See appl. nos. 40792/10, 30538/14 and 43439/14, para 52.
36.
See the above-mentioned judgment in Schalk and Kopf v. Austria, para 108.
37.
See the judgment of 25 May 1993 in Kokkinakis v. Greece, appl. no. 14307/88, para 31.
38.
See the judgment of 25 February 1982 in Campbell and Cosans v. The United Kingdom, appl. nos. 7511/76; 7743/76, para 36. On the right to education, see Chap. 11, Sect. 11.3.
39.
ECtHR (Grand Chamber) in its judgment of 13 February 2003 in Refah Partisi (the Welfare Party) and Others v. Turkey, appl. nos. 41340/98 and others, para 123.
40.
See para 5.
41.
See the ACommHPR Report of 17 February 2016 in Hossam Ezzat & Rania Enayet (Represented by Egyptian Initiative for Personal Rights & INTERIGHTS) v. Arab Republic of Egypt, Communication No. 355/07, finding a breach of Article 8 of the ACHPR by Egyptian legislation, subsequently amended (Report, para 140), which obliged adherents of religions other than Islam, Judaism or Christianity to declare their adherence to one of these religions in order to obtain documents on their marital status: para 138.
42.
See the judgment of 25 October 2018 in E.S. v. Austria, appl. no. 38450/12, paras 43–44 and 52–53.
43.
See Chap. 11, Sect. 11.3.
44.
See Chap. 2, Sect. 2.4.2.
45.
See Chap. 4, Sect. 4.3.3.
46.
See the views of 17 July 2018, respectively in Yaker v. France, CCPR/C/123/D/2747/2016, paras 8.1 ff., and Hebbadj v. France, CCPR/C/123/D/2807/2016, paras 7.1 ff.
47.
See appl. no. 3413/09, para 44 of the judgment.
48.
Id., para 46.
49.
Appl. no. n. 30814/06.
50.
Appl. no. 47429/09, paras 65–66 and 76 of the judgment.
51.
Judgment of 20 July 2021, appl. no. 12886/16.
52.
The Court also found that the failure by the national authorities to disclose to the applicant adequate information regarding the extent of the examination carried out on the corpse of the baby had been a further violation of the same rights.
53.
See Article 11(2) of the Charter.
54.
See Article 13(2) and (3) of the Convention.
55.
ECtHR (Grand Chamber), judgment of 23 September 1994 in Jersild v. Denmark, appl. no. 15890/89, para 31.
56.
On this feature of human rights, see Chap. 2, Sect. 2.4.2.
57.
Appl. no. 24662/94, para 47 of the judgment.
58.
See appl. nos. 15271/16 and six others, para 79 of the judgment.
59.
ECtHR judgment of 8 December 2020 in Panioglu v. Romania, appl. no. 33794/14.
60.
Appl. no. 45581/15.
61.
In this regard see ECtHR judgment of 14 September 2010 in Dink v. Turkey, appl. nos. 2668/07 and others, para 137.
62.
See appl. no. 41288/15, para 110.
63.
ECtHR judgment 10 January 2019 in Khadija Ismayilova v. Azerbaijan, appl. nos. 65286/13 and 57270/14, paras 158 ff.
64.
Judgment of 27 March 1996 in Goodwin v. The United Kingdom, appl. no. 17488/90, para 39.
65.
ECtHR judgment 6 October 2020 in Jecker v. Switzerland, appl. no. 35449/14.
66.
See judgment of 7 December 2021, Standard Verlagsgesellschaft mbH v. Austria (no. 3), appl. no. 39378/15.
67.
In the case of criticism of the work of a national court, the ECtHR has noted that such criticism, however harsh, must not undermine public confidence in the exercise of justice: see recently the judgment of 9 March 2021, Benitez Moriana and Iñigo Fernandez v. Spain, appl. nos. 36537/15 and 36539/15, paras 47–49.
68.
See the judgment of 2 July 2004 in Herrera-Ulloa v. Costa Rica, para 129.
69.
See the judgment of 5 December 2014 in Lohé Issa Konaté v. Burkina Faso, para 155.
70.
See the inadmissibility decision of 25 June 2019, Zu Guttenberg v. Germany, appl. no. 14047/16, para 27.
71.
Id., para 33.
72.
See supra, Sect. 9.1.3.
73.
In order to verify the good faith of the journalist, the national authorities are required in particular to check whether there is a connection between the facts reported and their knowledge by the public, on the one hand, and the value judgments expressed by the journalist concerning those facts, on the other, which may also be expressed in a particularly provocative manner. In this regard see recently ECtHR judgment of 21 February 2021, Tuşalp v. Turkey, appl. no. 32131/08.
74.
Appl. nos. 1759/08, 50766/10 and 50782/10, para 87 of the judgment.
75.
See recently ECtHR judgment of 27 July 2021, Sic - Sociedade Independente de comunicaçäo v. Portugal, appl. no. 29856/13, para 69.
76.
Appl. no. 38433/09.
77.
See para 129 of the judgment.
78.
Id., para 132.
79.
Id., para 134.
80.
See para 136 of the judgment.
81.
Id., paras 142–143.
82.
See para 12 of the judgment.
83.
See Part VI of the judgment.
84.
In Faheema Shirin R. K. and Others v. State of Kerala and Others, para 13.
85.
See Chap. 2, Sect. 2.4.2.
86.
See Resolution No. 20/8, para 1.
87.
Appl. no. 3111/10, para 48 of the judgment. In relation to the case at hand, the Court ruled that the temporary blocking of a website used by a university lecturer and, subsequently, the total blocking of his access to the Internet—measures decided by the Turkish authorities to prevent the lecturer’s dissemination of texts considered offensive to the memory of Atatürk—are to be considered contrary to the right to freedom of expression.
88.
Judgment of 9 February 2021 in Ramazan Demir v. Turkey, appl. no 68550/17, para 33.
89.
That Article 11 ECHR is infringed by legislative measures containing an absolute prohibition for members of the armed forces to join trade unions for the purpose of protecting their rights at work was affirmed by the ECtHR in its judgments of 2 October 2014 in Matelly v. France, appl. no. 10609/10, and ADEFDROMIL v. France, appl. no. 32191/09.
90.
In this regard, see the ECtHR judgment of 19 November 2019 in Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, appl. nos. 75734/12 and two others, para 287.
91.
Appl. no. 58954/09, para 35 of the judgment.
92.
Appl. no. 21881/20.
93.
See Article 12(4) ICCPR.
94.
See CCPR/C/122/D/2264/2013, para 9.2 of the decision.
95.
See supra, Sect. 9.4.
96.
With regard to freedom of movement, see HRC General Comment No. 27 of 2 November 1999, para 6.

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Department of Law, Luiss University, Rome, Italy
Pietro Pustorino

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Pustorino, P. (2023). Right to Respect for Private and Family Life, Freedom of Thought, Conscience and Religion, Freedom of Expression and Freedom of Assembly and Association. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_9

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DOI: https://doi.org/10.1007/978-94-6265-563-8_9
Published: 01 January 2023
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